Northern Exposure: Unmasking Online Spying in Canada

The Canadian national anthem proudly honors "The True North strong and free!” Yet Canadians face an imminent round of frightening online spy proposals that threaten long held civil liberties and privacy rights. Public Safety Minister Vic Toews has insisted that he won’t budge in his support of online spying legislation despite heavy criticism from privacy watchdogs.

We lastdiscussed the former online spying bills (C-50, C-51 and C-52) Canada’s majority Government sought to advance in October. Collectively called the “lawful access” bills, these measures are essentially a backdoor for law enforcement to easily access personal information. While Public Safety Canada has defended the bills, stating they would enable authorities to protect Canadians from “criminal and terrorist activities” without “infringing on the rights of law abiding Canadians,” the outcry over this legislative mandate has been considerable.

Academics, civil society, all opposing political parties, Internet service providers, and even public officials have continually criticized these bills for risking Canadian’s online security and privacy. As last drafted, the bills represent a dramatic and dangerous attempt to leverage online service providers as agents of state surveillance. They include new police powers that would allow Canadian authorities easy access to Canadians’ online activities, including the power to force ISPs to hand over private customer data without a warrant. Adding insult to injury, the legislation will also pave the way to gag orders that would prevent online service providers from notifying subscribers that their private data has been disclosed–a move that would make it impossible for users to seek legal recourse for privacy violations.

The dangers of these measures should not be underestimated. Openmedia.ca, CIPPIC, and other civil society groups have firmly denounced these spy bills and worked tirelessly to raise awareness about their true impact and intent. The wildly successful Stop Online Spying campaign, which began in June, now has over 75,000 signatures (please sign now if you haven’t already).

Canadian Privacy Debate Heats Up

On October 26, Federal Privacy Commissioner Jennifer Stoddart sent a letter to Vic Toews outlining her deep concern about the potential impacts of this online spying legislation prior to its reintroduction. Commissioner Stoddart reminded Toews that privacy protection “underpins our democratic freedoms…It allows us to exercise these freedoms openly, without fear, mistrust or censorship. This is why caution is so critical, to avoid the possible erosion of our free, open society.”

Public Safety Minister Vic Toews replied that he won’t budge on the government's online surveillance laws despite the "deep concerns" of Canada's privacy watchdog. Toews was quick to uphold his support of these bills, saying that:

Our approach strikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard the privacy of Canadians…As technology evolves, many criminal activities — such as the distribution of child pornography — become much easier. We are proposing measures to bring our laws into the 21st Century and provide police with the tools they need to do their job.

“Privacy Invasion shouldn’t be ‘lawful’”

A few days after Toews’ reply, Information and Privacy Commissioner of Ontario Ann Cavoukian came out strongly against the bills in the National Post:

I must add my voice to the growing dismay regarding the impact of impending ‘lawful access’ legislation in this country. In my view, it is highly misleading to call it “lawful.” Let’s call it what it is — a system of expanded surveillance.

Commissioner Cavoukian also sent a letter to Toews outlining the imminent threats they posed to Canadians’ privacy: “New powers must not come at the expense of the constitutional framework." Warrantless access to subscriber information is "untenable and should be withdrawn."

A large number of Canadians who look at these proposals may feel some unease but then quickly assert that the legislation is ultimately innocuous. The standard rhetoric is that ‘If you have nothing to hide then you shouldn’t fear this legislation.’ Such a statement obfuscates the realities of both contemporary policing and what studies demonstrate about how people actually versus rhetorically understand privacy…

…being situated in a wrong category can have significant implications on one’s life regardless of whether a person has ‘something to hide’ or not…. [What matters is] the ‘types’ of people one knowingly and unknowingly associates with, whom their associates are connected to, and the risk profiles that are assigned to those communicative partners and their colleagues…

The government has attempted to defend its stance on warrantless disclosure of subscriber information, arguing such identifiers are analogous to what can be found in a phone book. Many have pointed out the flaws in this analogy. Canadian Internet Law expert Professor Michael Geist explains:

While some of that information may seem relatively harmless, the ability to link it with other data will often open the door to a detailed profile about an identifiable person. Given its potential sensitivity, the decision to require disclosure without any oversight should raise concerns within the Canadian privacy community.

On the merits of Minister Toews’ analogy, Commissioner Cavoukian adds:

Consider just one of the new threats to our fundamental freedoms: police could force telecoms to provide the name, address and unique device number of people (enabling online tracking) who posted comments on newspapers' websites under pseudonyms - without a warrant, without explanation and in secret.

Canadian Lawyer, David Fraser, former Chair of the Canadian Bar Association’s National Privacy and Access Law Section, joined the debate and explained why lawful access legislation should not be allowed:

We expect to carry on our lawful lives free from police intrusion unless a judge can be persuaded that the police are justified in their intrusion into your life, including the fact that the intrusion relates to a lawful investigation into criminal wrongdoing. Lawful access would remove the only check and balance, allowing police the ability monitor citizens without any reason.

The heavy technical surveillance capacity obligations the legislation seeks to impose on ISPs even threaten Canada’s fragile competitive telecom environment. A lawyer for a coalition of independent ISPs outlined the risks such bills pose to small independent ISPs. ITWorldCanada notes, reporting on a recent panel:

“Assuming it will be the same act introduced in the last Parliament, “this isn’t going to be sustainable,” Chris Tacit, who acts for the Canadian Network Operators Consortium (CNOC), said Wednesday during a regulatory panel discussion at a conference in Toronto for independent ISPs.”

While no one can know what the new versions of the bills will look like, it is our hope that Toews will at least begin to consider the 75,000 Canadian voices opposing a law that would fundamentally jeopardize Canadian privacy and security.If similar bills are introduced in the coming weeks or months, Canadians must mobilize to fight to protect their data from excessive state surveillance.

Related Updates

A bill introduced in Texas threatens the free speech rights of 28 million residents by making it easier to bring frivolous lawsuits against speakers and to harass or intimidate them into silence. EFF has long been concerned about these types of lawsuits, called Strategic Lawsuits Against Public Participation, or SLAPPs...

The Texas Supreme Court upheld protections for anonymous online speakers in a January ruling, albeit in a way that sidestepped thorny legal questions but will likely have the effect of vindicating First Amendment rights going forward. The case, Glassdoor, Inc. v. Andra Group, concerned an effort by clothing...

A lawsuit filed in New York federal court last week against the creator of the “Shitty Media Men” list and its anonymous contributors exemplifies how individuals often misuse the court system to unmask anonymous speakers and chill their speech. That’s why we’re watching this case closely, and we’re prepared...

Facebook has a problem: an infestation of undercover cops. Despite the social platform’s explicit rules that the use of fake profiles by anyone—police included—is a violation of terms of service, the issue proliferates. While the scope is difficult to measure, EFF has identified scores of agencies who maintain policies that...

The leak investigation involving a Senate staffer and a New York Times reporter raises significant issues about journalists, digital security, and the ability of journalists to protect confidential sources. The New York Times recently revealed that the FBI had been investigating a former aide to the Senate Intelligence Committee...

People in marginalized communities who are targets of persecution and violence—from the Rohingya in Burma to Native Americans in North Dakota—are using social media to tell their stories, but finding that their voices are being silenced online. This is the tragic and unjust consequence of content moderation policies...

Update (February 15, 2018): The California Supreme Court denied Yelp's request to depublish the lower court's opinion.
In recent months, we’ve seen worrying decisions in state and federal courts that weaken the First Amendment protection for anonymous speech. Last week, EFF called on the California Supreme Court...

Requiring public universities to ban access to anonymous online speech platforms would undermine activism occurring on those campuses and violate the First Amendment, EFF argued in a brief filed on Thursday.
Plaintiffs in the case, Feminist Majority Foundation et al. v. University of Mary Washington, claim that university officials...

Update: In August 2018, the district court hearing the case ruled that Doe could maintain his anonymity, finding that the likely harm that would result from identifying Doe outweighed the public's interest in learning his identity. You can read the decision here. Anonymous online speakers may be able to...

As Congress and the Federal Elections Commission explore ways to counter foreign influence in U.S. elections through greater campaign finance disclosures, EFF has filed comments reminding policy makers of the danger of going too far. While the FEC’s goals are understandable, it must take care not to undermine...